White v. Jennings

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

LARRY WHITE, )

)

Petitioner, )

)

vs. ) Case No. 4:19-CV-1837 SRW

)

PAUL BLAIR,1 )

)

Respondent(s). )

MEMORANDUM AND ORDER

This matter is before the Court on the Petition of Larry White for a writ of habeas corpus

under 28 U.S.C. § 2254. (ECF No. 1). The matter is fully briefed. Both parties have consented to

the exercise of plenary authority by a United States Magistrate Judge under 28 U.S.C. § 636(c).

For the reasons set forth below, the petition for a writ of habeas corpus is denied.

I. BACKGROUND

In 2014, a jury convicted Petitioner of first-degree statutory rape, first-degree statutory

sodomy, and incest. The Circuit Court of St. Louis County sentenced him to 25 years in prison.2

Petitioner appealed his convictions to the Missouri Court of Appeals, Eastern District, who

affirmed his convictions. Petitioner filed a post-conviction relief (“PCR”) motion pursuant to

Missouri Supreme Court Rule 29.15. The PCR motion court denied Petitioner’s claims, and the

appellate court affirmed the motion court’s decision. Petitioner now seeks habeas relief before

this Court.

1 Petitioner is currently incarcerated at the Potosi Correctional Center in Mineral Point, Missouri. See ECF No. 33.

2 This sentence includes 25 years on each count of first-degree statutory rape and first-degree statutory sodomy, and

four years for incest, to be served concurrently. Petitioner has completed his sentence for incest.

II. STANDARD

Pursuant to 28 U.S.C. § 2254, a district court “shall entertain an application for a writ of

habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). “[I]n a § 2254 habeas corpus proceeding, a federal court’s review

of alleged due process violations stemming from a state court conviction is narrow.” Anderson v.

Goeke, 44 F.3d 675, 679 (8th Cir. 1995).

Federal courts may not grant habeas relief on a claim that has been decided on the merits

in State court unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). “A state court’s decision is contrary to . . . clearly established law if

it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it

confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision . . .

and nevertheless arrives at a [different] result.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir.

2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A state court “unreasonably

applies” federal law when it “identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or

“unreasonably extends a legal principle from [the Supreme Court’s] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a new context where

it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). A state court decision may be

considered an unreasonable determination “only if it is shown that the state court’s

presumptively correct factual findings do not enjoy support in the record.” Ryan v. Clarke, 387

F.3d 785, 790-791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).

A state court’s factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1); Wood

v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d)(1) is limited to the record before the

state court which adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180-81

(2011). Clear and convincing evidence that state court factual findings lack evidentiary support is

required to grant habeas relief. 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293.

III. DISCUSSION

Petitioner asserts ten claims in his Petition. The first two allegations concern trial court

errors. Petitioner argues the trial court erred in admitting the victim’s out-of-court statements

under Missouri Revised Statute § 491.075, and the trial court erred in overruling Petitioner’s

motion for judgment of acquittal on five counts, submitting instructions to the jury on those

counts, accepting the guilty verdicts as to those counts, and sentencing Petitioner on those

counts. In his remaining eight claims, Petitioner asserts he received ineffective assistance of

counsel when: his counsel failed to question Petitioner’s daughters about the victim’s mother

when they testified; his counsel failed to consult with and call an expert witness; his counsel

conducted the pretrial § 491.075 hearing without viewing the video interview of the victim; his

counsel failed to make a proper objection to the bolstering testimony of Detective Bruno and

Beverly Tucker; his counsel failed to investigate and present testimony from several witnesses;

his counsel failed to object to the jury instructions in Petitioner’s motion for new trial; his

counsel failed to adequately inform Petitioner of the sentencing consequences in rejecting a five-

year plea deal; and his counsel failed to investigate and present evidence that the victim’s mother

previously falsified allegations that Petitioner sexually abused the victim.

A. Victim’s Out-of-Court Statements

In his first claim, Petitioner asserts the trial court erred in admitting the out-of-court

statements made by the victim, J.R., under Mo. Rev. Stat. § 491.075. He argues the admission of

J.R.’s testimony allowed improper bolstering testimony by Detective Bruno and Beverly Tucker.

He claims this violated his rights to a fair trial and due process under the Fifth, Sixth, and

Fourteenth Amendments.

Petitioner’s claim is not cognizable in a federal habeas action. With limited exceptions,

“admissibility of evidence at a state trial is a matter of state law and ordinarily will not form the

basis for federal habeas relief[.]” Clark v. Groose, 16 F.3d 960, 963 (8th Cir. 1994). “Thus, on

habeas review of a state conviction, a federal court does not examine whether evidence was

properly admitted under state law.” Tokar v. Bowersox, 1 F. Supp. 2d 986, 1004 (E.D. Mo. 1998)

(citing Estelle v. McGuire, 502 U.S. 62 (1991)). Rather, review is “limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.” Id. A federal court

will reverse a state court evidentiary ruling “only if it ‘infringes upon a specific constitutional

right or is so grossly or conspicuously prejudicial that it fatally infected the trial and denied the

defendant the fundamental fairness that is the essence of due process.’” Maynard v. Lockhart,

981 F.2d 981, 986 (8th Cir. 1992) (quoting Berrisford v. Wood, 826 F.2d 747, 749 (8th Cir.

1987)).

Although Petitioner asserts the alleged trial court error violated his constitutional rights,

he provides no support or argument for how those rights were violated. In his argument on direct

appeal for this claim, he made no mention of constitutional error and only claimed the trial

court’s error violated Missouri law. ECF No. 13-2, at 10-14. Petitioner has not shown the

admission of J.R.’s statements violated his constitutional rights, nor does the record show his

rights were violated by the admission of this evidence. The Court will deny the Petition on this

claim.

B. Trial Court Error as to Counts 1, 2, 3, 4, and 9

In his second claim, Petitioner asserts the trial court erred in (1) overruling his motion for

judgment at the close of the State’s evidence as to counts 1-4, and 9, (2) submitting jury

instructions 7-10, and 15 to the jury, (3) accepting the guilty verdicts as to counts 1-4, and 9, as

well as (4) sentencing Petitioner on those counts. Petitioner believes the State failed to prove

every element of the offenses and failed to present evidence as to the specifics of how any of the

alleged events occurred.

The Court will first address subsection (2) of Petitioner’s claim because it is procedurally

defaulted. Petitioner raised this claim in his direct appeal, but the Court of Appeals reviewed the

claim for plain error because Petitioner did not raise the issue in his motion for a new trial.

Petitioner’s claim is procedurally defaulted before this Court because he waived it before the

state court. The Court of Appeals’ decision rests on independent and adequate state procedural

grounds, and the state court’s discretionary plain-error review of Petitioner’s claim does not

excuse the procedural default. Coleman v. Thompson, 501 U.S. 722, 730 (1991); Clark v.

Bertsch, 780 F.3d 873, 876-77 (8th Cir. 2015) (A state court’s discretionary plain-error review of

unpreserved claims does not excuse a petitioner’s procedural default). Unless Petitioner “can

demonstrate cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice,” his claim is procedurally barred. Coleman, 501 U.S. at 750. Petitioner

has not established, or even attempted to argue, cause and prejudice, or that a failure to consider

this claim will result in a fundamental miscarriage of justice. Therefore, the Court will dismiss

subsection (2) as procedurally barred.

In subsections (1), (3), and (4), Petitioner claims insufficient evidence supported his

convictions on counts 1-4, and 9. Count 1 charged Petitioner with first-degree statutory rape,

Counts 2-4 charged Petitioner with first-degree statutory sodomy, and Count 9 charged Petitioner

with incest. For sufficient evidence to support a criminal conviction, the Fourteenth

Amendment’s Due Process clause requires “evidence necessary to convince a trier of fact

beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia,

443 U.S. 307, 316 (1979). “The evidence is sufficient to support a conviction whenever, ‘after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Parker v.

Matthews, 567 U.S. 37, 43 (2012) (per curiam) (emphasis in original) (quoting Jackson, 443 U.S.

at 319). This standard “gives full play to the responsibility of the trier of fact . . . to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319.

In habeas proceedings, the AEDPA “imposes a highly deferential standard for evaluating

state-court rulings, and demands that state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks and citations omitted). A

federal habeas court “may not overturn a state court decision rejecting a sufficiency of the

evidence challenge simply because the federal court disagrees with the state court.” Cavazos v.

Smith, 565 U.S. 1, 2 (2011) (per curiam). Rather, a federal habeas court may only overturn a

state court decision on the sufficiency of the evidence “if the state court decision was

‘objectively unreasonable.’” Id. (quoting Renico, 559 U.S. at 773); accord Coleman v. Johnson,

566 U.S. 650, 656 (2012) (per curiam) (“Johnson”) (A federal habeas court may grant relief if

the jury’s finding of guilt, based on the evidence considered in the light most favorable to the

prosecution, “was so insupportable as to fall below the threshold of bare rationality.”).

When reviewing a state court’s sufficiency of the evidence decision, a federal court

“‘faced with a record of historical facts that supports conflicting inferences must presume—even

if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts

in favor of the prosecution, and must defer to that resolution.’” McDaniel v. Brown, 558 U.S.

120, 133 (2010) (per curiam) (quoting Jackson, 443 U.S. at 326). A federal habeas court is not

permitted to make its own determination of witness credibility, for that determination is for the

state court trier of fact. Robinson v. LaFleur, 225 F.3d 950, 954 (8th Cir. 2000). Additionally, the

testimony of a victim or an eyewitness is sufficient to sustain a conviction. See Tibbs v. Florida,

457 U.S. 31, 45 n.21 (1982) (“If the jury believed [the eyewitness’] story, the State’s

presentation was more than sufficient to satisfy due process.”); see also Loeblein v. Dormire, 229

F.3d 724, 726 (8th Cir. 2000) (“A victim’s testimony is, by itself, normally sufficient to sustain a

conviction.”).

The Missouri Court of Appeals held there was sufficient evidence to support Petitioner’s

convictions on counts 1-4, and 9, finding as follows:

In State v. Porter, the defendant was convicted of two counts of first-degree

statutory sodomy. On appeal, the defendant argued that the trial court erred in

overruling his motion for judgment of acquittal because the victim’s testimony

was “so contradictory and inconsistent that it [could not] constitute substantive,

probative evidence.” The Missouri Supreme Court examined Missouri’s

“corroboration rule” and the “destructive contradictions doctrine” and abolished

both. The corroboration rule allowed appellate courts to disregard a sex crime

victim’s testimony if it was contradictory and uncorroborated. The Court found

that the corroboration rule should be abolished for two reasons. First, it required

appellate courts to make credibility determinations that are for the trier of fact.

Second, the corroboration rule only applied to victims of sex crimes, therefore

assuming that a sex crime victim’s testimony is less credible than another crime

victim’s testimony and that “judges and juries are uniquely unable to make

accurate factual determinations in sex crime cases.” Similarly, the destructive

contradictions doctrine allowed an appellate court to disregard a witness’s

testimony if the court determined the testimony was “inherently incredible, self-

destructive or opposed to known physical facts with respect to an element on the

crime.” The Court again found the doctrine required appellate courts to make

credibility determinations that are reserved for the finder of fact and therefore

abolished the doctrine entirely.

Defendant’s argument regarding the sufficiency of the evidence is similar to

that of the defendant in Porter. Defendant urges us to find that there was

insufficient evidence to support his convictions for Counts 1, 2, 3, 4 and 9

because [J.R.’s] testimony was vague, contradictory and did not provide specific

dates or details. Defendant points to various instances in the record where [J.R.’s]

statements were contradictory or unclear. However, the inconsistencies in [J.R.’s]

statements do not render the evidence insufficient. At trial, [J.R.] testified that

August 28 was not the first time that Defendant had put his mouth on her vagina,

put his penis in her anus, or put his penis in her vagina. At the CAC, [J.R.] told

Beverly Tucker that Defendant did the previously mentioned sexual acts prior to

August 28, and that he also put his penis in her mouth. Any inconsistencies were

for the jury’s determination as the fact-finder. When we review the evidence in

the light most favorable to the verdict, there was sufficient evidence for a

reasonable juror to conclude that Defendant, prior to August 28, had sexual

intercourse with [J.R.], put his mouth on [J.R.’s] vagina, put his penis in her anus,

and put his penis in her mouth.

ECF No. 13-6, at 11-13 (internal citations omitted).

The Missouri Court of Appeals’ decision is not objectively unreasonable. The trial

transcript also supports the appellate court’s summary of the evidence and J.R.’s testimony. ECF

No. 17-1, at 241-71. Petitioner’s counsel thoroughly cross-examined J.R. and brought forth any

inconsistencies in her statement or potential undue influence from her mother. This allowed the

jury to make a competent determination of J.R.’s credibility. Her testimony alone is sufficient to

sustain the convictions. See Tibbs, 457 U.S. at 45 n.21; Loeblein, 229 F.3d at 726. Because

sufficient evidence existed to sustain the conviction, the trial court did not err in overruling his

motion for judgment at the close of the State’s evidence, accepting the guilty verdicts, or

sentencing Petitioner on Counts 1-4, and 9. The Court will deny the Petition as to this claim.

C. Ineffective Assistance of Counsel

In claims 3-10, Petitioner asserts he received ineffective assistance of counsel. He claims

his trial counsel failed to present certain testimonial evidence from Petitioner’s daughters, failed

to consult with expert witnesses and present their testimony, failed to watch the video interview

of J.R. prior to conducting the § 491.075 hearing, failed to make a proper objection to the

bolstering testimony of Detective Bruno and Beverly Tucker, failed to investigate and present

testimony from several witnesses, failed to object to jury instructions in his motion for new trial,

failed to adequately inform Petitioner of the possible harsh sentencing consequences when

rejecting a five-year plea offer, and failed to investigate and present evidence that J.R.’s mother

had previously falsified allegations in 2005 that Petitioner had sexually abused J.R.

1. Daughters’ and Sister’s Testimony

Petitioner argues his trial counsel failed to question Lori White and Lisa White,

Petitioner’s daughters, about critical information. According to Petitioner, Lori3 would have

testified that one year before J.R.’s accusations, Lori overheard Ladonna White, J.R.’s mother,

threaten to report Petitioner for sexually abusing J.R. if he did not give her money. Petitioner

asserts Lisa would have testified she heard Ladonna threaten to report Petitioner for sexual abuse

of J.R. if Petitioner did not sign over the title for a truck and give her money. Both Lori and Lisa

testified to these statements at Petitioner’s PCR hearing. Petitioner also asserts, in claim seven,

his sister, Marion White, would have testified Ladonna told her if Petitioner ever crossed her, she

would falsely report him for child abuse. Marion testified to this in a deposition filed in

Petitioner’s PCR case.

3 The Court refers to Lori White, Ladonna White, Lisa White, and Marion White by their first names to differentiate

between them, not to imply any familiarity or informality.

On appeal of the denial of his PCR motion, the Missouri Court of Appeals affirmed the

denial of Petitioner’s motion on this issue finding as follows:

At the evidentiary hearing, Lori explained that, if asked at trial, she would

have testified that she heard Mother tell Movant that if he “didn’t give her . . .

money, she was going to accuse him of messing with [Victim] in a sexual way.”

She explained that Mother made this threat “to make false allegations just so that

he would give her money.” Likewise, Lisa testified that “[a] couple weeks” before

Movant was arrested, she heard Mother tell him “that she was going to make [an]

accusation up, saying that he touched her, if [he] didn’t . . . give her some

money.” Marion testified via deposition that Mother had made the same threats

“to [her] face.” Counsel, however, testified that he did not ask about the alleged

threats because, while such evidence would have been consistent with his trial

theory, “I considered it hearsay [since Victim’s] mom was not called. I don’t

think either side wanted to touch her. And so it was hearsay.”

The Motion court denied Movant’s point, finding the evidence at issue to be

“inadmissible hearsay” such that Counsel was not ineffective for failing to present

it.

The motion court’s findings and conclusions are not clearly erroneous. Here,

Mother, not Victim, was the declarant of purported threats to fabricate allegations

of sexual misconduct against Movant. Mother’s threats were therefore indicative

of her own state of mind, and they had no bearing on Victim’s. Mother’s state of

mind, however, was not at issue here, and as such, the threats were not “especially

relevant” in this case. Thus, the state of mind exception did not apply, and

testimony about Mother’s threats would have been inadmissible hearsay. “Trial

counsel cannot be found ineffective for failing to offer inadmissible evidence.”

Since Movant cannot establish that Counsel rendered deficient representation, the

motion court did not clearly err in denying his Amended Motion.

ECF No. 17-14, at 5-6 (internal citations omitted).

The Court of Appeals’ decision is entitled to deference. In order to prevail on an

ineffective-assistance-of-counsel-claim, a petitioner must meet the two-prong test established by

Strickland v. Washington, 466 U.S. 687, 690, 694 (1984): (1) he must show that counsel’s

performance was so deficient that, “in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance,” and (2) he must

show “that the deficient performance prejudiced the defense,” in the sense that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Petitioner has not established his counsel’s performance was

deficient or he was prejudiced by his counsel’s decision.

Petitioner argues the proposed testimony is admissible under the declarant-victim state of

mind hearsay exception. This Court’s role is not to question a state court’s applicability of state

law unless the petitioner has challenged the constitutionality of the state law, which Petitioner

has not done here. Estelle, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”). The appellate court determined

the statements were hearsay and did not meet any hearsay exception. This Court must abide by

that ruling. See Ford v. Norris, 364 F.3d 916, 918-19 (8th Cir. 2004). Because the statements

were inadmissible, Petitioner’s counsel was not ineffective for failing to question Lori and Lisa,

and to present Marion’s testimony, about the statements.

Finally, Petitioner’s claim also fails because he does not establish he was prejudiced by

his counsel’s decision. He was not prejudiced because the testimony would not have been

admissible even if his counsel had tried to admit it. See Blankenship v. United States, 159 F.3d

336, 338 (8th Cir. 1998) (“No prejudice arises from counsel’s failure to raise a claim that had

little likelihood of success on the merits.”). The Court will deny the Petition on these claims.

2. Expert Witnesses

Petitioner argues his counsel provided ineffective assistance of counsel when he failed to

consult with expert witnesses and present their testimony at trial. Petitioner raised this claim in

his appeal of the denial of his PCR motion. The Missouri Court of Appeals affirmed the PCR

motion court’s denial on this issue, holding as follows:

In his Amended Motion, Movant alleged that Counsel was ineffective for

failing to consult with and call as an expert Dr. Duncan, who would have

explained that “the techniques used by [Detective] Bruno and [Tucker] to

interview [Victim] were improperly suggestive [and] would not lead to truthful

disclosures about sexual abuse.” Movant argued he was prejudiced because, with

Dr. Duncan’s testimony, the jury would have known through “the benefit of

expert advice . . . that the reliability of [Victim’s] pretrial disclosures and trial

testimony had been compromised by improper techniques.

At the evidentiary hearing, Dr. Duncan, a clinical psychologist, testified that

under the Missouri-approved protocol for interviewing potential child victims of

sexual abuse, of which she is familiar, Tucker’s interview with Victim was

“severely compromised” because Tucker used an excessive number of leading

questions and “insertions” of her “own idea[s] into the repertoire of [Victim].”

Thus, Dr. Duncan claimed that the interview was “contaminated” because

Tucker’s interviewing technique diminished the reliability of Victim’s responses

such that it would be “almost impossible” for a juror to determine whether

Victim’s claims were descriptions of events that actually occurred or merely

“something put into [Victim’s] verbal repertoire.” Dr. Duncan testified that she

charges $250 per hour for her work and that she spent eighteen to twenty hours

preparing for the evidentiary hearing.

Counsel testified that he has forty years of experience as an attorney and

“concentrate[s] on handling criminal cases,” including a prior case in which he

represented Movant in a forcible rape case where Movant was found not guilty.

Counsel noted that this case “was not [his] first sexual assault on a child case.” He

explained that he retained no expert witness to assist with the issue of whether

Victim’s interview responses and testimony were reliable because, in his

experience in sexual trauma cases, experts are “blatantly expensive” and have

little “credibility with juries.”

The motion court denied Movant’s argument, finding that Counsel engaged in

sound trial strategy by relying on his experience in deciding not to “spend money

Movant may not have . . . on something that would not [affect] the outcome of the

trial.”

The motion court’s findings and conclusions are not clearly erroneous. Here,

Counsel testified that, in his experience in sexual trauma cases, expert witnesses

lack credibility with juries such that they provide little benefit to the defense,

especially given the cost of experts’ fees. Dr. Duncan testified that she charges

$250 per hour for her work and spent eighteen to twenty hours preparing for the

evidentiary hearing alone. Counsel engaged in reasonable trial strategy in

considering, under a cost-benefit analysis, whether to retain an expert witness and

determining, based on his forty years of experience in criminal cases, not to retain

Dr. Duncan because her fees would outweigh the benefit of her assistance in the

case. Additionally, Counsel emphasized repeatedly the inadequacy of Tucker’s

questioning of the victim during cross examination and closing argument. Movant

cannot show that Counsel’s representation was deficient, and the motion court did

not clearly err in denying the Amended Motion.

ECF No. 17-14, at 8-10.

“The selection of an expert witness is a paradigmatic example of the type of strategic

choice that, when made after thorough investigation of the law and facts, is virtually

unchallengeable.” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014). Petitioner has not met that

high bar. He has not established his counsel’s performance was deficient by failing to call Dr.

Duncan, or any other expert witness.4 Petitioner’s counsel’s decision not to call Dr. Duncan was

well-reasoned. The Missouri Court of Appeals’ decision is entitled to deference. The Court will

deny the Petition on this claim.

3. Pre-Trial § 491.075 Hearing

Petitioner’s fourth claim asserts his trial counsel provided ineffective assistance of

counsel when he did not watch the video interview of J.R. prior to conducting the pre-trial §

491.075 hearing.5 Petitioner raised this claim in his Amended PCR Motion. The Missouri Court

of Appeals affirmed the PCR motion court’s denial of this claim, finding as follows:

At the evidentiary hearing, Counsel testified that during discovery he

received, inter alia, a transcript of the interview between Victim and Tucker, a

video recording of it, and a report giving “a detailed account of the . . . interview.”

Counsel noted that the video would not play, and while he asked the State for a

new copy, the State did not provide one until “much later.” Counsel testified that

while the state provided a new copy of the video, he was “not sure” whether he

received it by the time of the Section 491.075 hearing, which was scheduled for

the Friday before the Monday of trial. Regardless, Counsel agreed that he “had

enough time with the video before the trial” and that he “had . . . the written

report” of the interview for the hearing, which was “fairly detailed as to what the

allegations [were].”

In denying Movant’s argument, the motion court found that Movant failed to

meet his burden to show that Counsel did not review the video and failed to show

that he was prejudiced by any failure by Counsel to review it.

The motion court’s findings and conclusions are not clearly erroneous. Here,

Movant presented no evidence to establish by a preponderance of the evidence

4 Petitioner did not specify in his habeas motion before this Court, or in his reply brief, which expert his counsel

should have called. The Court assumes he refers to Dr. Duncan, the expert raised in his state court filings.

5 Under Missouri Revised Statute § 491.075, a prior statement made by a child under the age of fourteen is

admissible as evidence in criminal proceedings if the court finds, in a hearing conducted outside the presence of the

jury, the circumstances of the statement provide sufficient indicia of reliability.

that Counsel was deficient. When Counsel testified that he was “not sure”

whether he had the recording by the time of the hearing, he never explicitly

testified that he, in fact, did not possess it or that he did not view it. Moreover,

Movant failed to show prejudice. Nothing in the evidence presented suggested

that the video of the interview contained anything that was not in the transcript of

the interview or the accompanying written report, both of which Counsel had

prior to the hearing. Absent such evidence, Movant cannot show that there was a

reasonable probability of a different outcome. The motion court did not err in

denying Movant’s Amended Motion.

ECF No. 17-14, at 11-13 (internal citations omitted).

The Court of Appeals’ decision is entitled to deference. Petitioner has not established he

was prejudiced from his counsel’s alleged failure to view the video. In his reply brief, Petitioner

argues he was prejudiced by this failure because if his counsel had viewed the video before trial,

he could have obtained an expert witness who could have testified about the interviewer’s

improper interview techniques. Petitioner’s counsel’s testimony rebuts this assertion. His counsel

testified he decided not to hire an expert not because he did not have time to do so but because he

believed an expert would be expensive and that they do not have “much credibility with juries”

in cases dealing with sexual trauma. ECF No. 17-8, at 119. Petitioner’s counsel also testified he

had a report and a transcript of the interview. Id. at 131-32. Petitioner does not explain why his

counsel needed to view the video rather than just read the transcript. For these reasons, Petitioner

has not established he received ineffective assistance of counsel on this issue. The Court will

deny the Petition as to this claim.

4. Failure to Object to Testimony

Petitioner asserts his counsel provided ineffective assistance of counsel when he failed to

make a proper objection to the bolstering testimony of Detective Bruno and Beverly Tucker.

Petitioner raised this claim in his Amended PCR motion. ECF No. 17-13, at 120-122. The PCR

motion court found Petitioner raised the issue of improper bolstering in his direct appeal, and he

could not raise it again in his PCR motion under the guise of ineffective assistance of counsel.

ECF No. 17-13, at 25-26. Petitioner appealed this ruling arguing the motion court erred in failing

to make findings of fact and conclusions of law on the merits of his claim. ECF No. 17-10, at 17-

18.

The Missouri Court of Appeals disagreed, finding Petitioner did not preserve his

argument for appellate review:

“The court shall issue findings of fact and conclusions of law on all issues

presented, whether or not a hearing is held.” “As a general rule, we are unable to

provide meaningful review of an order denying post-conviction relief without

findings of fact and conclusions of law, requiring reversal of the judgment and

remand for the entry of findings and conclusions.” However, “not every failure to

enter a finding or conclusion for an issue requires reversal and remand.” Reversal

and remand are unnecessary “[w]here a post-conviction movant fails to file a Rule

78.07(c) motion to amend the judgment drawing the absence of required findings

of fact or conclusions of law to the court’s attention.”6 When a movant in post-

conviction proceedings fails to file a motion to amend the judgment pursuant to

Rule 78.07(c), he has preserved nothing for review insofar as his claim pertains to

the form or language of a judgment.

Here, the docket sheets do not show that Movant filed a motion to amend the

Judgment, and the record contains no such motion. Having failed to file a motion

to amend the judgment, pursuant to Rule 78.07(c), Movant has not preserved this

point for appellate review.

ECF No. 17-14, at 17-18 (internal citations omitted).

Because Petitioner failed to properly preserve his claim for appellate review in state

court, his claim is procedurally defaulted before this Court. When a state court decides a claim

on state procedural grounds, rather than on the merits, federal habeas review is barred, because

the state court decision rests on independent and adequate state procedural grounds. Coleman,

501 U.S. at 730. Such a claim is barred “unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure

to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750.

6 Rule 78.07(c) provides that “[i]n all cases, allegations of error relating to the form or language of the judgment,

including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in

order to be preserved for appellate review.”

Petitioner argues he can demonstrate cause and actual prejudice through Martinez v.

Ryan, 566 U.S. 1 (2012). “Under the exception, [Petitioner] may overcome the default if: (A)

‘the state collateral review proceeding was the ‘initial review proceeding with respect to the

‘ineffective-assistance-of-counsel claim’’; (B) the ineffective-assistance claim is ‘substantial’;

and (C) postconviction counsel’s ineffectiveness was the ‘cause’ for the default.” Taylor v.

Steele, 6 F.4th 796, 801 (8th Cir. 2021) (quoting Harris v. Wallace, 984 F.3d 641, 647-48 (8th

Cir. 2021)). “To be substantial, ‘the prisoner must demonstrate that the claim has some merit.’”

Id. (quoting Martinez, 566 U.S. at 14). “This means that whether [Petitioner’s] trial counsel was

ineffective under Strickland v. Washington must at least be ‘debatable among jurists of reason.’”

Id. (quoting Harris, 984 F.3d at 648-49).

Petitioner’s claim that his trial counsel was ineffective for failing to object to the

bolstering testimony of Detective Bruno and Beverly Tucker does not have any merit; it is not

“debatable among jurists of reason.” First, it is unclear to what exact testimony Petitioner is

referring. His Petition does not include any specific citations to the testimony at issue, nor does

his reply brief. The Court assumes Petitioner refers to the same testimony addressed in his direct

appeal.

On direct appeal, the Missouri Court of Appeals found Detective Bruno and Ms. Tucker’s

testimony did not improperly bolster J.R.’s testimony:

In this case, Detective Bruno’s testimony, including her recollection of what

J.R. told her in her interview, was not admitted simply to rehash J.R.’s prior

testimony at trial. Detective Bruno established the procedures and purpose of the

police department’s investigatory interview, as well as J.R.’s behavior and

emotional reactions during her interview. Beverly Tucker’s testimony also

included her recollection of her interview with J.R., and established the process

and procedures by which children are interviewed at the CAC. Most importantly,

the witnesses’ testimony served to highlight the various consistencies and changes

in J.R.’s statements through time. As a result, each witness’s testimony had a

value apart from duplicating J.R.’s trial testimony.

ECF No. 17-6, at 6 (internal citations omitted).

Although the appellate court reviewed Petitioner’s bolstering claim under plain error

review because he did not properly preserve his argument, their rationale for the admissibility of

testimony applies here. Detective Bruno and Ms. Tucker did not simply reiterate J.R.’s

testimony. They provided their own recollections, observations of J.R.’s demeanor, and

explanation of what occurred during the interviews. This was especially important where the

credibility of J.R.’s testimony was being challenged, and the defense was attempting to assert

J.R.’s testimony was fabricated by her mother.

“Improper bolstering occurs when the out of court statement of a witness is offered solely

to be duplicative or corroborative of trial testimony.” State v. Biggs, 333 S.W.3d 472, 479 (Mo.

2011) (quoting State v. Seever, 733 S.W.2d 438, 441 (Mo. 1987)). “A witness’s testimony as to

his or her own recollection of the child’s statements as well as the circumstances surrounding the

making of that statement necessarily will be different than that of an alternative witness.” Id. As

the Missouri Court of Appeals held, Detective Bruno and Ms. Tucker’s testimony was not

improper bolstering. Therefore, it would not have made a difference if Petitioner’s counsel had

objected to the testimony because it was admissible testimony. Petitioner cannot establish his

counsel’s performance was deficient or he was prejudiced by his counsel’s failure to object.

Because Petitioner has not demonstrated his ineffective assistance of counsel claim has

some merit, he has not established cause and prejudice under Martinez. Therefore, this claim

remains procedurally defaulted, and the Court will deny the Petition as to this claim.

5. Failure to Investigate and Present Witnesses

Petitioner argues his trial counsel provided ineffective assistance of counsel when he

failed to investigate and present testimonial evidence from witnesses Marion White, Larry

White, Jr., Rochelle Carter, and Robert Adler. The State divided Petitioner’s claim into five

subsections: (1) failure to investigate the witnesses; (2) failure to call Marion White; (3) failure

to call Larry White, Jr.; (4) failure to call Rochelle Carter; and (5) failure to call Robert Adler.

The Court refers to these same subsections for consistency.

Petitioner fully exhausted this claim before the state courts as to Marion White, but failed

to exhaust the remainder of the claim either by failing to raise it in his Amended PCR motion or

in the appeal of the denial of his PCR motion. Therefore, subsections (1), (3), (4) and (5) are

procedurally defaulted. The Court previously addressed the claim as it relates to Marion White

above. It will now address the remainder of the claim.

Petitioner did not raise a failure to investigate witnesses claim in his Amended PCR

Motion. ECF No. 17-13, at 103-112. He asserted claims of failing to call Lori and Lisa White,

Marion White, Larry White, Jr., Rochelle Carter, and Robert Adler as witnesses at trial. Id. at

107-112. However, these claims do not mention a failure to investigate these witnesses.

Therefore, this claim is procedurally defaulted. Petitioner also did not assert his failure to call

Larry White, Jr., Rochelle Carter, and Robert Adler claims in his appeal of the denial of his PCR

motion. ECF No. 17-10, at 13-18. These claims are also procedurally defaulted.

“[A] state prisoner must exhaust available state remedies before presenting his claim to a

federal habeas court.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (citing 28 U.S.C. §

2254(b)(1)(A)). Exhaustion requires “one complete round of the State's established appellate

review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “A failure to exhaust

remedies properly in accordance with state procedure results in procedural default of the

prisoner's claims.” Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010) (citing O'Sullivan, 526 U.S.

at 848)). A petitioner under § 2254 may avoid procedural default only by showing there was

cause for the default and resulting prejudice, or a miscarriage of justice would result from

enforcing the procedural default in the petitioner's case. See Wainwright v. Sykes, 433 U.S. 72,

87, 90–91 (1977). In order to establish cause, a petitioner must show “some objective factor

external to the defense” prevented his compliance with a state procedural rule. Murray v.

Carrier, 477 U.S. 478, 488 (1986). Petitioner attempts to establish cause and prejudice for his

default through Martinez, asserting his PCR counsel was ineffective for failing to raise these

claims. This means Petitioner must show his claim is substantial, or has some merit. Taylor, 6 F.

4th at 801.

In his reply brief, Petitioner asserts Larry White, Jr., his son, and Rochelle Carter, his

daughter, would have testified they lived in Petitioner’s house during the time period of the

alleged abuse, and it was extremely unlikely for Petitioner to be alone with J.R. and not as

frequent as was suggested by J.R. Petitioner did not attach an affidavit from either of his children

attesting to these statements, and they did not testify at his PCR hearing. Petitioner also asserts

Robert Adler, his attorney in a different proceeding for failure to register as a sex offender,

would have testified Petitioner reported to him a year before J.R. made her accusations that

J.R.’s mother was extorting money from him by making threats to falsely accuse him of abusing

J.R. Mr. Adler advised Petitioner not to pay her any more money. A deposition of Mr. Adler was

taken for Petitioner’s PCR proceedings. However, the statements Petitioner included in his reply

brief were not addressed in Mr. Adler’s deposition.

When analyzing a claim of ineffective assistance of counsel for failure to call a witness,

the Court considers the credibility of all witnesses, including the likely impeachment of any

uncalled witnesses, the interplay of uncalled witnesses and actual defense witnesses called, and

the strength of the evidence presented by the prosecution. Armstrong v. Kemma, 590 F.3d 592,

596 (8th Cir. 2010). The decision not to call a witness is a “virtually unchallengeable decision of

trial strategy.” United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005).

Petitioner fails to establish he received ineffective assistance of counsel when his counsel

failed to call Larry White, Jr. and Rochelle Carter as witnesses. At trial, Lisa and Lori White

testified on behalf of Petitioner. Lisa testified she lived off and on with her father during the time

period in question, and J.R. was “very rarely” alone with Petitioner. ECF No. 17-1, at 358. She

also testified J.R. never told her anything about the sexual abuse allegations even though they

were close and shared secrets with one another. Id. at 359. Lori testified she lived with Petitioner

and was very close to J.R. Id. at 363-64. She testified J.R. mostly slept with her in her room, and

she never saw Petitioner touch J.R. in any type of unusual or sexual way. Id. at 365. Lori testified

J.R. never told her that Petitioner harmed her in any way. Id. at 366. Larry and Ms. Carter’s

testimony would have been cumulative to Lisa and Lori’s testimony. Counsel is not ineffective

for failing to call witnesses whose testimony would have been repetitive. Schlup v. Armontrout,

941 F.2d 631, 639 (8th Cir. 1991); see also Tisius v. Jennings, 4:17-CV-426 SRB, 2020 WL

6386874 at *13 (W.D. Mo. Oct. 30, 2020) (citing Winfield v. Roper, 460 F.3d 1026, 1033 (8th

Cir. 2006)).

Petitioner also fails to show his counsel was ineffective for failing to call Robert Adler as

a witness. Mr. Adler’s proposed testimony is to relay a statement made by Petitioner to Mr.

Adler about J.R.’s mother. Mr. Adler’s testimony would not have been admissible because it is

hearsay. Although the admission of a party opponent does not qualify as hearsay, the statement

must be offered by the opposing party. State v. Floyd, 347 S.W.3d 115, 124 (Mo. Ct. App. 2011).

In this case, Petitioner seeks to offer his own statement through his own witness. This does not

qualify as an admission of a party opponent. Because Mr. Adler’s testimony would not be

admissible, Petitioner cannot establish his counsel was ineffective for failing to call Mr. Adler as

a witness.

Petitioner fails to establish his claims are substantial; therefore, he has not shown cause

and prejudice to excuse his procedural default of these claims under Martinez. The Court will

deny the Petition as it relates to these claims.

6. Failure to Object to Jury Instructions

Petitioner asserts he received ineffective assistance of counsel when his trial counsel

failed to object to jury instructions in his motion for new trial. Petitioner raised this claim in his

Amended PCR motion, but he did not appeal the denial of the claim. Therefore, this claim is

procedurally defaulted. Petitioner attempts to establish cause and prejudice for his default

through Martinez, asserting his PCR counsel was ineffective for failing to appeal the denial of

this claim. This means Petitioner must show his claim is substantial, or has some merit. Taylor, 6

F. 4th at 801.

Petitioner does not specify what instructions his counsel should have objected to in his

motion for new trial. The Court will assume Petitioner is referring to the same instructions he

challenges in his second claim, his claim of trial court error, which are instructions 7-10, and 15.

Instruction 7 states:

As to Count I, if you find and believe from the evidence beyond a reasonable

doubt:

First, that between September 1, 2007 and August 27, 2010, at 1464 Ferguson

Avenue, in the County of St. Louis, State of Missouri, the defendant knowingly

had sexual intercourse with J.R. in the bedroom, and

Second, that at that time J.R. was a child less than twelve years old,

then you will find the defendant guilty under Count I of statutory rape in the first

degree.

However, unless you find and believe from the evidence beyond a reasonable

doubt each and all of these propositions, you must find the defendant not guilty of

that offense.

ECF No. 17-5, at 65. Instruction 8 states:

As to Count II, if you find and believe from the evidence beyond a reasonable

doubt:

First, that between September 1, 2007 and August 27, 2010, at 1464 Ferguson

Avenue, in the County of St. Louis, State of Missouri, the defendant knowingly

had placed his tongue on the vagina of J.R. in the bedroom, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that at the time J.R. was a child less than twelve years old,

then you will find the defendant guilty under Count II of statutory sodomy in the

first degree.

However, unless you find and believe from the evidence beyond a reasonable

doubt each and all of these propositions, you must find the defendant not guilty of

that offense.

As used in this instruction, the term “deviate sexual intercourse” means any

act involving the genitals of one person and the tongue of another person, done

for the purpose of arousing or gratifying the sexual desire of any person.

ECF No. 17-5, at 66.

Instruction 9, for first-degree statutory sodomy, was identical to Instruction 8, but

specified Defendant “placed his penis against the anus of J.R.” and defined “deviate sexual

intercourse” as “any act involving the genitals of one person and the anus of another person,

done for the purpose of arousing or gratifying sexual desire of any person.” ECF No. 17-5, at 67.

Instruction 10, for first-degree statutory sodomy, was Identical to 8 and 9, except it specified that

Defendant “put his penis into the mouth of J.R.” and defined “deviate sexual intercourse” as

“any act involving the genitals of one person and the mouth of another person, done for the

purpose of arousing or gratifying sexual desire of any person.” ECF No. 17-5, at 68.

Instruction 15 states:

As to Count IX, if you find and believe from the evidence beyond a

reasonable doubt:

First, that between September 1, 2007 and August 27, 2010, at 1464 Ferguson

Avenue, in the County of St. Louis, State of Missouri, that defendant engaged in

deviate sexual intercourse with J.R. by placing his penis into the mouth of J.R. in

the bedroom, and

Second, that J.R. was a stepchild of defendant by virtue of a marriage creating

that relationship and which still existed at the time referred to in paragraph First,

and

Third, that defendant knew or was aware J.R. was a stepchild of defendant by

virtue of a marriage creating that relationship and which still existed at the time

referred to in paragraph First, then you will find the defendant guilty under Count

IX of incest.

However, unless you find and believe from the evidence beyond a reasonable

doubt each and all of these propositions, you must find the defendant not guilty of

that offense.

As used in this instruction, the term “deviate sexual intercourse” means any

act involving the genitals of one person and the mouth of another person, done for

the purpose of arousing or gratifying the sexual desire of any person.

ECF No. 17-5, at 73.

Petitioner does not argue why these instructions were incorrect. In his reply brief,

Petitioner states his trial counsel objected at trial to the instructions because they did not require

the jury to find unanimously Petitioner committed a single act corresponding to each count

charged. ECF No. 29, at 29. The Court will assume he makes the same argument here.

To establish his PCR counsel was ineffective for failing to appeal this issue, Petitioner

must establish his trial was ineffective for failing to object to the jury instructions in his motion

for new trial, which means he must establish the jury instructions were incorrect. If the jury

instructions were correct, Petitioner’s counsel cannot be ineffective for failing to object to them.

The Missouri Court of Appeals addressed the sufficiency of the jury instructions in Petitioner’s

direct appeal:

The Missouri Constitution provides that “the right of trial by jury as

heretofore enjoyed shall remain inviolate.” The Missouri Supreme Court has

interpreted “as heretofore enjoyed” to protect “all the substantial incidents and

consequences that pertain to the right to jury trial at common law.” A unanimous

jury verdict is a “substantial incident” of the right to jury trial. In cases where

multiple alleged acts in a given time period are charged in a single count, the

court can protect a defendant’s right to a unanimous jury verdict by either (1)

choosing one particular act to support the charge, or (2) specifically instructing

the jury that they must unanimously agree that at least one of the multiple acts

occurred.

Here, Defendant asserts that the jury instructions are not specific enough to

allow the jury to come to a unanimous verdict. Defendant also argues that the

evidence presented at trial was insufficient for the jurors to unanimously agree to

a specific act on each of these counts. Defendant contends that the jury

instructions are similar to those in Celis-Garcia. In that case, the two victims

alleged multiple acts of sexual abuse in various locations. The jury instructions

simply required the jury to find the defendant guilty if they found “that between

[specified dates] . . . the defendant or [her boyfriend] placed her or his hand on

[the victim’s] genitals[.]” The Court found these instructions were insufficient

because the instructions did not require the jurors to agree on one particular act in

one particular location.

Contrary to Defendant’s contention, the jury instructions in this case are less

like those [in] Celis-Garcia and more like those in State v. Flores. In Flores, the

Western District found that the jury instructions required a unanimous verdict

because “[t]he various instructions described specific parts of the body that were

touched and specified the location where the touching occurred.” In the instant

case, J.R. told Beverly Tucker at the CAC that Defendant had placed his mouth

on her vagina, inserted his penis in her anus, inserted his penis in her vagina, and

put his penis in J.R.’s mouth on multiple occasions prior to August 28, 2010. J.R.

said that Defendant did these acts both in the bedroom and on the couch. The

challenged instructions provided a specific time period for the alleged acts

(“between September 1, 2007 and August 27, 2010”), described the specific body

part that was touched, and specified the location of the acts (“in the bedroom”).

As a result, the jury instructions were sufficient to secure a unanimous jury

verdict. We find no error, plain or otherwise.

ECF No. 17-6, at 14-16 (internal citations omitted).

As the state appellate court found, the jury instructions were sufficient under Missouri

law. Each charge and accompanying instruction stated the specific act on which the jury was

asked to convict. See State v. Celis-Garcia, 344 S.W.3d 150, 157 (Mo. 2011) (“[A] defendant’s

right to a unanimous verdict would be protected in a multiple acts case by either the state (1)

electing the particular criminal act on which it will rely to support the charge, or (2) the verdict

director specifically describing the separate criminal acts presented to the jury and the jury being

instructed that it must agree unanimously that at least one of those acts occurred.”). “It is not the

province of a federal habeas court to reexamine state-court determinations on state-law

questions.” Estelle, 502 U.S. at 67-68. The Missouri Court of Appeals found Petitioner’s jury

instructions to be sufficient. This Court must accept that conclusion. Therefore, Petitioner did not

receive ineffective assistance of counsel when his counsel failed to object to the instructions in

his motion for new trial because it would have been a meritless objection.

Petitioner fails to establish his underlying ineffective assistance of counsel claim is

substantial, and he has not shown cause and prejudice for his default under Martinez. This claim

is procedurally defaulted. The Court will deny the Petition as to this claim.

7. Failure to Advise as to Sentencing Consequences

Petitioner argues he received ineffective assistance of counsel during the plea-bargaining

process when his trial counsel failed to inform him of the possible harsh sentencing

consequences of rejecting a five-year plea deal. Petitioner raised this claim in his Amended PCR

Motion; however, he did not appeal the denial of this claim. ECF Nos. 17-13, at 106, 17-10, at

13-18. Therefore, this claim is procedurally defaulted. Petitioner asserts he can establish cause

and prejudice under Martinez because his PCR counsel was ineffective for failing to appeal the

denial of this claim.

At the time Petitioner was facing charges in for the convictions challenged in this case, he

was also facing charges that he had failed to register as a sex offender. ECF No. 17-8, at 103.

Douglas Forsyth represented Petitioner in the case at issue here, and Robert Adler represented

him in the failure to register case. At Petitioner’s PCR motion hearing, both Petitioner and Mr.

Forsyth testified about the plea deal. Petitioner also submitted a deposition from Mr. Adler.

Before the start of trial, the trial court put on the record the details of the plea deal offered

to Petitioner. ECF No. 17-1, at 4-6. The proposed deal required Petitioner to plead guilty to five

counts with a one-year sentence on each count, each sentence to be served consecutively for a

total of five years. Id. Petitioner would serve this sentence in the county jail. Id. The trial court

confirmed with Petitioner that he had been told of the five-year offer and did not want to plead

guilty. ECF No. 17-1, at 4-6. The trial court did not review the maximum sentence with

Petitioner. Id.

At the PCR hearing, Mr. Forsyth testified he told Petitioner, at the time the plea deal was

offered, this was a “reasonably good offer,” and if he did not take it, he could go to prison for the

rest of his life. Id. at 108. Mr. Forsyth also testified when he initially met with Petitioner, he

explained the range of punishment was a minimum of ten years and a possibility of life in prison.

Id. at 129. Mr. Forsyth testified Petitioner rejected the plea offer and never indicated he wanted

to take the deal after it was initially offered. Id. at 130.

Mr. Adler, who represented Petitioner on his failure to register charge, was deposed for

Petitioner’s PCR case. He testified he told Petitioner, in the failure to register case, there was a

four-year maximum, and he anticipated Petitioner getting time served. ECF No. 13-11, at 9. He

also testified he told Petitioner the combined recommendation of five years for both cases was a

good recommendation because of the more serious offense concerning J.R. Id. Mr. Adler did not

explain to Petitioner the maximum sentence he was facing in the more serious case.

Petitioner testified at his PCR hearing Mr. Adler sent him a letter conveying the plea

offer, but he did not tell him anything about the plea. ECF No. 17-8, at 70. He also testified Mr.

Forsyth communicated the plea offer to him but did not tell him what could happen if he went to

trial and was found guilty. Id. at 71. Petitioner testified he thought if he went to trial and was

found guilty, he would get five years. Id. He thought the result would be the same whether or not

he pled guilty. Petitioner stated Mr. Forsyth told him he was glad Petitioner did not take the plea

deal because he thought they could win the case. Id.

Petitioner also testified he had not seen the video interview of J.R. before trial, but if he

had seen the video, he would have just taken the five years. Id. at 72-73. Petitioner testified he

would have pled guilty, even though he was not guilty, to avoid the longer prison term. Id. at 73.

On cross-examination, Petitioner again reiterated he did not commit this crime, and he was

innocent. Id. at 88. He also stated, “I wasn’t guilty. What would I take the plea for?” Id. at 90. He

further testified, “No, I didn’t want a plea deal. I wasn’t guilty.” Id. at 96.

The PCR Motion court denied Petitioner’s ineffective assistance claim finding:

Movant is incorrect in that the maximum sentence he could have received was not

twenty-five years in the Missouri Department of Corrections but a term of

imprisonment of thirty years or life on the unclassified felonies of Statutory Rape

in the First Degree and Statutory Sodomy in the First Degree.

Trial counsel testified he advised Movant if he did not take the plea offer, “he

could go to prison for the rest of his life.” Trial counsel stated he had

“conversations” with Movant about the range of punishment and he advised

Movant he could spend the rest of his life in jail if he chose to proceed to trial and

was found guilty and that Movant understood those risks. At no point did Movant

ever indicate he wished to plea guilty.

Movant has failed to show he suffered any prejudice.

ECF No. 17-13, at 16-17.

In order to prevail on his ineffective-assistance-of-counsel-claim, Petitioner must show

his counsel’s performance was so deficient that, “in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally competent assistance,” and “that

the deficient performance prejudiced the defense,” in the sense that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 690, 694. The PCR Court found Petitioner’s counsel was

not deficient. In doing so, the PCR judge believed Mr. Forsyth’s testimony over Petitioner’s.

This Court’s role is not to “redetermine [the] credibility of witnesses whose demeanor has been

observed by the state trial court, but not by [this Court].” Marshall v. Lonberger, 459 U.S. 422,

434 (1983). In adopting Mr. Forsyth’s testimony over Petitioner’s testimony, the PCR motion

court clearly found Mr. Forsyth to be more credible than Petitioner. Mr. Forsyth testified he

informed Petitioner of the consequences of rejecting the plea deal, including the potential

maximum sentence he faced if convicted. Therefore, Mr. Forsyth’s performance was not

deficient.

Petitioner also fails to establish he was prejudiced by his counsel’s allegedly deficient

performance. “When the defendant’s claim is that counsel misadvised him of the relative

advantages of pleading guilty rather than proceeding to trial, in order to show [Strickland]

prejudice, the defendant must show that, but for his counsel’s advice, he would have accepted the

plea.” Talavera v. United States, 842 F.3d 556, 558 (8th Cir. 2016) (quoting Sanders v. United

States, 341 F.3d 720, 722 (8th Cir. 2003)). While Petitioner testified he would have taken the

plea deal had he been adequately informed of the potential consequences of proceeding to trial,

he also repeatedly testified he was innocent. “A defendant who maintains his innocence at all

stages of his criminal prosecution and shows no indication that he would be willing to admit his

guilt undermines his later [habeas] claim that he would have pleaded guilty if he only received

better advice from his lawyer.” Id. (quoting Sanders, 341 F.3d at 723).

Petitioner has not established his ineffective assistance of counsel claim is substantial.

Thus, he has not shown cause and prejudice under Martinez to excuse the procedural default of

this claim. The Court will deny the Petition as to this claim.

8. Failure to Investigate and Present Evidence on Victim’s Mother

In his final claim, Petitioner argues he received ineffective assistance of counsel when his

trial counsel failed to investigate and present evidence J.R.’s mother had previously falsified

allegations in 2005 that Petitioner sexually assaulted J.R. Petitioner did not assert this claim in

his Amended PCR motion; therefore, it is procedurally defaulted. Unless Petitioner “can

demonstrate cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice,” his claim is procedurally barred. Coleman, 501 U.S. at 750. Petitioner

has not established, or even attempted to argue, cause and prejudice or that a failure to consider

this claim will result in a fundamental miscarriage of justice. Therefore, the Court will dismiss

this claim as procedurally defaulted.

Accordingly,

IT IS HEREBY ORDERED that the Petition of Larry White for a Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 is DENIED.

IT IS FURTHER ORDERED that Petitioner Larry White’s Petition is DISMISSED,

with prejudice. Petitioner has not made a substantial showing of a denial of a constitutional

right, and this Court will not issue a Certificate of Appealability. 28 § U.S.C. 2253(c)(2). A

separate judgment in accord with this Order is entered on this same date.

So Ordered this 4th day of February, 2022.

/s/ Stephen R. Welby

STEPHEN R. WELBY

UNITED STATES MAGISTRATE JUDGE